Promoting transparency and engagement in shared governance in universities and colleges. Formerly "The Faculty Voice: Sharing While Chairing the Penn State Faculty Senate" April 2012-April 2013

Wednesday, August 29, 2012

A Critical Endorsement of the Past Chairs Statement Regarding the Freeh Report and NCAA Consent Decree

During the course of the University Faculty Senate Meeting held Tuesday August 28, 2012 (e.g. Faculty Senate August 24 Meeting Agenda) Kim Steiner an eminent former Chair of the University Faculty Senate introduced a "Statement by a Group of Past
Chairs of The Pennsylvania State University Faculty Senate Regarding the
Freeh Report, the NCAA Consent Decree, and Their Academic Implications
August 28, 2012." On motion
made at the end of the meeting, the Senate will consider endorsing this
statement at its October 2012 meeting.

(Pix (c) Larry Catá Backer 2012)

I have given this Statement sustained and serious consideration, analyzing it critically. There is much in that Statement that is worthy of serious consideration, but there are also important lacunae that weaken the analysis and misdirect its focus. Putting aside questions of the utility of this exercise (e.g. Statement of Senate Chair Made at the Aug 28, 2012 Meeting), I conclude that I will support the motion for Senate endorsement of the Statement at the October 201232 meeting. This post includes a copy of the Statement and my critical assessment.

Here is the Statement:

Statement by a Group of Past Chairs
of The Pennsylvania State University Faculty Senate
Regarding the Freeh Report, the NCAA Consent Decree, and Their Academic Implications
August 28, 2012

As
the world now knows, horrible crimes against vulnerable young boys were
committed by a prominent member of the Penn State community. We, an ad
hoc group of past chairs of the University Faculty Senate, share the
widespread concern for the victims, are outraged and deeply saddened
that this happened in our community, and support efforts to redress the
wrongs and remedy their root causes.

We also
are concerned that the broader circumstances around the Sandusky crimes
have become distorted in the current hyperbolic media environment to the
detriment of the entire Penn State community. Much of this has been
fueled by the investigation of the Freeh Group and their report. Their
investigation appears to have been reasonably thorough, given that it
could not subpoena testimony. However, as a document in which evidence,
facts, and logical argument are marshaled to support conclusions and
recommendations, the Freeh Report fails badly. On a foundation of scant
evidence, the report adds layers of conjecture and supposition to create
a portrait of fault, complicity, and malfeasance that could well be at
odds with the truth. We make no judgment of the culpability of those
individuals directly surrounding the Sandusky crimes. We lack sufficient
knowledge to do so, and we are content to wait until guilt or innocence
is adjudicated by the courts. But as scientists and scholars, we can
say with conviction that the Freeh Report fails on its own merits as the
indictment of the University that some have taken it to be. Evidence
that would compel such an indictment is simply not there.

More
central to our concerns are the recent sanctions levied against Penn
State by the National Collegiate Athletic Association (NCAA) and, more
importantly, the rationale for those actions and their negative impact
on the academic well-being of the University. The NCAA did not conduct
its own investigation of the Penn State situation, but rather drew its
conclusions from the findings of the Freeh Report. The NCAA Consent
Decree, which substantially embellishes the initial Freeh findings in
both tone and substance, claimed no standard of proof for its
conclusions but nonetheless required Penn State to accept the Freeh
Group’s assertions as fact.

The NCAA actions were not
predicated on any rulebook violations by members of the football team,
the crimes committed by a former assistant coach, or even the alleged
concealment of those crimes by University officials. Rather, the NCAA
based its actions on the sweeping assertion that a culture permeating
every level of the Penn State community places the football program “in
higher esteem than the values of the institution, the values of the
NCAA, the values of higher education, and most disturbingly the values
of human decency.” The NCAA further alleges that “the culture exhibited
at Penn State is an extraordinary affront to the values all members of
the Association have pledged to uphold and calls for extraordinary
action,” and it states that the sanctions are intended to change this
culture.

These assertions, from the middle of page
four of the Consent Decree, are the sole predicate for the NCAA
sanctions, yet the NCAA cites no document that proves their truth, as
the Freeh Report certainly does not do so. Not only are these assertions
about the Penn State culture unproven, but we declare them to be false.
As faculty members with a cumulative tenure at Penn State in the
hundreds of years, and as former Faculty Senate chairs with intimate
knowledge of the University stretching back for decades, these
assertions do not describe the culture with which we are so very
familiar. None of us has ever been pressured or even asked to change a
grade for an athlete, nor have we heard of cases where that has
occurred. We know that there are no phantom courses or bogus majors for
athletes at Penn State. Some of us have privately witnessed swift and
unyielding administrative actions against small transgressions, actions
taken expressly to preserve academic and institutional integrity. We
have performed our duties secure in the knowledge that academic funds do
not subsidize the athletic program. We have been proud of the excellent
academic record of our student-athletes, and of the fact that the Penn
State has never before had a major NCAA sanction. And we have taken
pride in an institutional culture that values honesty, decency,
integrity, and fairness. It is disturbing in the extreme to have that
culture’s very existence denied by the NCAA.

The NCAA
has used its assertion of collective guilt to justify its collective
punishment of the entire University community, almost all of whom had
absolutely no involvement in or knowledge of the underlying crimes or
the administration’s allegedly insufficient response. The damaging
rhetoric used by the NCAA to justify its sanctions has unjustly injured
the academic reputation, financial health, and general well-being of the
University. These outcomes are in contradiction to the stated ideals of
the NCAA, ideals for which Penn State has been an exemplar among
universities.

Further, in reaching beyond its
authority of regulating intercollegiate athletics and by sanctioning
Penn State for non-athletic matters, the NCAA has significantly eroded
Penn State’s institutional autonomy and established a dangerous
precedent. The NCAA Consent Decree “requires” the University to adopt
all of the recommendations in the Freeh Report, recommendations with
implications that permeate almost all aspects of institutional activity.
Under normal circumstances, the merits of the report’s recommendations
would have been carefully evaluated by the Administration, the Board,
and the Faculty Senate and adopted or ignored as appropriate. Instead,
what were suggested by the Freeh Group as possible corrective actions
now are required by the NCAA. In our view, many of these seem to make
good sense but others misjudge the nature of academic institutions and
may well be counterproductive. In any event, policy changes such as
these should be made with careful deliberation and not by precipitous
and heavy-handed fiat. We do not dismiss the need to examine
and improve the way Penn State operates. The shock of the crimes that
occurred here clearly underlines the need for greater vigilance and
stronger policies. However, the sweeping and unsupported generalizations
by the Freeh Group and the NCAA do not provide a satisfactory basis for
productive change. The NCAA has departed from its own procedures in
administering these sanctions, which are unprecedented in their
rationale and severity. The sanctions are deeply unjust to the
University and unfair to its students, and they should be regretted by
all who care about the integrity of academic sports programs for which
the NCAA is supposed to be the guardian.

This
Statement is worthy of serious consideration. I suspect it may be
endorsed by the Senate in its October 2012 meeting. I am generally
sympathetic to its broad outlines. I tend to take a different view of
the problem of the Freeh Group Report. It is true enough, as the
Statement suggests, that there are potentially significant substantive
deficiencies in both the character of the evidence and the conclusions
reached. But that should come as no surprise, considering the well
understood limitations of the investigation. The critical errors came
from the way the university and outside parties chose to treat the Freeh
Group's efforts and their willingness to invest the Freeh Group Report
with a legitimacy it did not deserve. That is not so much an inherent
failure of the Freeh Group Report as a consequences of the choices made
by the Board of Trustees in deciding how to manage the work of the Freeh
Group through its special investigation task force, and as well a
consequence of the university to vest the Freeh Group with a legitimacy
that in retrospect might have been over-broad. The university itself
chose to accept the Freeh Group Report "as is." The independent members
of the Board of Trustees evaluate and direct its agent, the Freeh
Group, with respect to its information gathering work; it also chose not
to take on for itself the task of analysis of the evidence and
conclusion. To all appearances, then, it might have been reasonable to
assume that the university had itself endorsed both the fact finding and
conclusions of the Freeh Group Report, whatever its flaws and
limitations.

And so the bottom line:
There is nothing inherently wrong with the assembly of factual
information assembled by the Freeh Group and set out in its report, as
incomplete or flawed as it might be judged when critically analyzed.
Indeed, the evidentiary work of the Freeh Group is as capable of
analysis by anyone as it was bu its authors, as the Past Chairs
Statement itself well evidences. The real weakness of the report lies
in its conclusions and recommendations. It was here that the Freeh
Group overstepped its authority and changed its role from an agent of
the Board of Trustees to a substitute for the Board. That extension of
authority was neither authorized by the laws under which Penn State was
constituted nor necessary. It was the obligation of the independent
members of the Board of Trustees to receive the information prepared by
its agents, and with their guidance, perhaps, and the guidance of
others, to engage in the difficult task of drawing conclusions and
making recommendations for changes in the institution. That is the
essence of their role as members of the Board. The independent members
of the Board chose not to take charge of the report of its agent, and
allowed the Freeh Group to appear to effectively exercise governance
authority. It would then be as useful to consider the lessons of that
choice going forward in the context of university givernance reform as
it is to focus singularly, as the Statement appear to do, only on the
unfortunate and no doubt contestable conclusions and recommendations
produced by the Freeh Group.

Acceptance of the
conclusions and recommendations of the Freeh Group without any
engagement by the independent members of the Board is the critical step
that links the Freeh Group conclusions to the NCAA investigations. That
action, or failure to act, by those on the Board with the authority to
act (or to choose not to act) more than anything inherent in the Freeh
Group Report, gave the NCAA investigation all of the support it needed
to reasonably rely on not merely the evidence produced by the Freeh
Group but also its conclusions and recommendations in fashioning its
sanctions positions then presented in the form of a diktat to the
university. It is this critical element of analysis that tends to be
lost in the emotions of the debate about Freeh Group Report, and in the
focus of the Statement. To fail to consider this does this institution a
disservice, as it seeks to move forward; it contributes to the
misdirection of responsibility to the agent (Freeh) and away from the
principal.

It follows, then, in this context that it might well have been reasonable for the NCAA to treat the Freeh Group report in its entirety
with the same legitimacy that the university itself had appeared to
lend it. I agree, though, that the NCAA failed in its own race to
sanctions by ignoring its own procedural rules and effectively bullying
one of its members in a fairly ruthless way. The NCAA will likely rue
the day it abandoned procedural fairness and deliberation in sanctions
cases when, as is likely, another university violates its rules. It is
important for the NCAA to be reminded, at every opportunity, of its own
failures of governance and leadership, its failures of applying ethical
standards consistently, as the NCAA wrestles with the next round of
sanctions investigations. Taken, together, then, the Statement gets to
the right conclusion, though it takes a path that is perhaps too focused
on one of the parties to the creation of the mess that this entire
process represents.

Where
I think I differ most from the Statement is on the issue of culture. I
agree with both the authors of the Statement and President Erickson,
that the idea of Penn State culture is contextual--much of what is
commonly understood as Penn State culture, including its academic and
social cultures remains strong and untainted. Anyone would be hard
pressed to disagree with the Statement on that point. But I am not sure
that either the NCAA or the Freeh Group meant to paint with so broad a
brush. The central point of the culture indictment of Penn State
focuses on governance cultures extending from the top to the bottom of
the institution. In particular, it focused on uncontrolled and
unaccountable power within the Penn State administration, one with
particularly pernicious effects on one aspect of Penn State's
operations--its management of its sports activities in general and its
football program in particular. That culture of governance--uncontrolled
and unaccountable power--permeated the governance of athletics and
might have tainted governance generally by setting a "tone at the top"
that might have been replicated elsewhere. This might come closer to
the understanding of the culture and athletics issue highlighted by the
NCAA that President Erickson understood when he stated: "It is important
to know we are entering a new chapter at Penn State and
making necessary changes. We must create a culture in which people are
not afraid to speak up, management is not compartmentalized, all are
expected to demonstrate the highest ethical standards, and the operating
philosophy is open, collegial, and collaborative." Penn State President Erickson’s statement regarding NCAA Consent Decree, July 23, 2012.

Despite
these troublesome elements, it is possible to endorse the Statement in
good conscience. The Statement, in general terms, serves as a reminder
that as we move forward with necessary and important reforms, those who
judge the university are not themselves without fault. The NCAA has
provided its own indictment of the very system, the integrity of which
it sought to protect, by its willingness to pervert that system for
particular and specific ends. And that knowledge might help in the
consideration of approaches to necessary reforms at Penn State. Overall,
then, the Statement makes an important point that needs to be
underlined, even as we work hard to move forward. In the end the
conclusion of the Statement likely represents accurately the opinion of a
majority of the Senate: "We do not dismiss the need to examine and
improve the way
Penn State operates. . . .
However, the sweeping and unsupported generalizations by the Freeh Group
and the NCAA do not provide a satisfactory basis for productive
change." That conclusion alone is worth endorsing.

9 comments:

Thank you for your response to my e-mail and also for your decision to endorse the past chair's statement. There is no question that this is a very emotional and complicated situation. There is also no question that we all view things through different glasses. Those debates will continue but it is my hope that we can finally come together as a family and stand up against willful injustice, both by supporting the victims of crimes and by standing against the NCAA and anyone who determines a course of "justice" without due process.

Good move by the senate. This is what the BOT should have done instead of immediately firing Paterno, take a month to look at the "evidence," and then make a decision. I am sure that if the PSU Faculty Senate members read the Freeh Report they will be shocked at what an incomplete investigation it was, and that the conclusions are not warranted by the evidence.

Thank you Mr. Backer for not only standing up for Penn State, but also for pointing out the fact that the poor governance of the present Board of Trustees is what got Penn State into the mess that it is in now. Many alumni are legitimately concerned that the sanctions imposed by the NCAA and the Big Ten, together with the biased and mean-spirited portrayal of this story in the media, are bringing nearly irreparable financial harm to our great University. Further, many of us feel that you, the faculty, have the power to go further than endorsing a letter and in fact have grounds for legal action challenging the sanctions. We alumni will back our excellent faculty in any legal action they choose to take and we applaud you for being the one group at Penn State that is willing to stand up for the institution we hold so dear. For the Glory, Jessi Lillo '91

I applaud the actions of the past chairs and the plan of the current senate. Between the BoT, Freeh group, and Special Investigative committee, I don't view the outcome as good intentions gone bad. There is a large element of intention, but it appears to be the intent to purposely harm Penn State's reputation. Statements such as those which appeared in the Freeh report do not occur by accident.

Dr. Tramble T. Turner said...Some keys points raised here: what has been the "administrative culture" in the past and how did decisions by governance bodies foster situations that have led to the present moment. Also of note is that the Athletics Integrity Agreement (AIA) signed at the end of August includes a key provision: if, after thorough investigation, Penn State can make the case for why specific Freeh Report Recommendations should not be implemented, then the NCAA and Big 10 will review and will be willing to waive the implementation of the recommendation that is challenged. While that may not be a robust appeals process for the NCAA and Big 10 sanctions, if does provide more of a step to a due process review than had existed prior to our last Faculty Senate meeting on August 28th, the day when the AIA was being finalized.

The "utility" of this exercise is that considered, critical thinking and some form of process is better than the BOT rush to judgement and obvious lack of process.

The ideal would be considered, critical thinking in conjunction with the application of due process ... but that ship sailed last November and has traveled around the world a few times. Truth is now just stepping up to the table.

Kudos to you for transparency (this blog) and engaging in public discourse. Both steps in the right direction.

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About this Site

I served as Chair of The Pennsylvania State University Faculty Senate for a a short term, April 2012-April 2013. During that year I tried to enhance transparency and engagement in shared governance, in part, by contributing to a blog: The Faculty Voice: Sharing While Chairing the Penn State University Senate." It was specifically focused on issues and affairs that touch on the role of the PSU Faculty Senate and its work. Though the materials are specific to Penn State, it was written to have relevance to the functioning of shared governance generally within universities and colleges. People within and outside the Penn State faculty were encouraged to read and engage. This blog is the successor to "The Faculty Voice." It serves as a purely personal site created with the object of developing an independent site for engagement in the study of shared governance generally within an academic context. It focuses on those issues that should be of general concern to the public. It does not embrace a particular view or ideology, nor is it meant to serve as the mouthpiece for any one of the many stakeholders with significant interests in education. It is neither affiliated with nor does it in any way represent the views of Penn State University or any of its affiliates. I invite you, whether or not you are involved in the "business" of education to read and join in the conversation.